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Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Rules and Regulations
subsection . . . unless such unit of general local government certifies that . . . it will affirmatively further fair housing, 12705b15 requiring certification that the jurisdiction will affirmatively further fair housing, 1437C1d16 requiring the public housing agencys certification that it will affirmatively further fair housing. It is well-settled that Congress is presumed to be aware of an administrative or judicial interpretation of a statutory provision and to adopt that interpretation when it re-enacts that statute or uses the same statutory language elsewhere without change.
Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct. 1752 2018 citing Lorillard v. Pons, 434 U.S. 575, 580 1978;
Bragdon v. Abbott, 524 U.S. 624, 645
1998 explaining that when administrative and judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its administrative and judicial interpretations as well..
See also Tex. Dept of Hous. & Cmty.
Affairs, 576 U.S. at 53638 applying the concept of implicit ratification to the Fair Housing Act.

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HUDs Implementation of the Affirmatively Furthering Fair Housing Mandate For decades, consistent with this judicial precedent, HUD interpreted the AFFH mandate as requiring the agency to use its programs to do more than simply not discriminate and bar others from discriminating. HUD instead interpreted this obligation to mean that it was required to use its programs to take affirmative steps to proactively overcome historic patterns of segregation, promote fair housing choice, and foster inclusive communities for all.4 Since 1996, HUD
required its grantees to support their certifications that they were affirmatively furthering fair housing by undertaking an Analysis of Impediments to Fair Housing Choice AI, a form of fair housing planning.
For example, HUD regulations for program participants that submit 4 The requirement of recipients of Federal housing and urban development funds and other Federal funds to affirmatively further fair housing has also been reiterated through executive order predating the PCNC rule. Executive Order 12892, entitled Leadership and Coordination of Fair Housing in Federal Programs: Affirmatively Furthering Fair Housing, issued January 17, 1994, vests primary authority in the Secretary of HUD for all federal executive departments and agencies to administer their programs and activities relating to housing and urban development in a manner that furthers the purposes of the Fair Housing Act.

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Consolidated Plans require an AFFH
compliance certification. For many years, these regulations provided that, in making such certification, a grantee would commit to conducting an analysis of impediments to fair housing choice within the jurisdiction, take appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain records reflecting the analysis and actions in this regard. 24 CFR
91.225a1, 91.325a1 and 91.425a1 1996. The AI is meant to be an assessment of conditions, both public and private, that affect fair housing choice within a grantees jurisdiction. HUDs Fair Housing Planning Guide FHPG provided extensive guidance on how to AFFH by supplying a framework for fair housing planning.
The 2015 AFFH Rule In July 2013, HUD proposed regulations that codified and implemented the agencys longstanding interpretation of the AFFH requirement.
After undertaking an extensive review of comments, HUD issued its 2015 final AFFH rule to implement the statutory requirement with respect to consolidated plan and public housing agency program participants, published on July 16, 2015 at 80 FR 42272.
Consistent with decades of understanding of the obligation to AFFH
as discussed throughout this preamble, the rule defined a funding recipients AFFH duty as taking meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with racially balanced living patterns, transforming racially or ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws.
The rule further defined meaningful actions as significant actions that are designed and can be reasonably expected to achieve a material positive change that affirmatively furthers fair housing by, for example, increasing fair housing choice or decreasing disparities in access to opportunity. The AFFH
rule defined fair housing choice, in turn, to mean that individuals and families have the information, opportunity, and options to live where they choose without unlawful discrimination and other barriers related to race, color, religion, sex, familiar status, national origin, or disability. In sum, HUD restated and memorialized the substantive content of the statutory obligation to AFFH, based on longstanding precedent in caselaw,
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administrative practice, and congressional intent and ratification, in various definitions in the 2015 AFFH
rule.
In addition, the 2015 AFFH rule established a process whereby program participants 5 would conduct a more standardized Assessment of Fair Housing AFH instead of an AI. The rule further required the program participant to certify that it would take meaningful actions to further the goals identified in its AFH. Program participants were not required to conduct and submit an AFH until after HUD had made available its Assessment Tool available for their use.6 and instead were instructed to continue conducting AIs i.e., a variant of the same process they had followed for many years to meet their AFFH obligations. 24 CFR
5.160a3 2015.
Following promulgation of the 2015
AFFH rule, HUD began to implement the process contemplated by its 2015
AFFH rule, including producing assessment tools for program participants to use to conduct AFHs.
HUD reviewed forty-nine submitted AFHs. In 2018, however, HUD paused implementation. HUD published three Federal Register Notices on May 23, 2018, one of which withdrew the Assessment Tool for Local Governments, the only available HUDprovided Assessment Tool for program participants to use when conducting an AFH. 83 FR 23927 May 23, 2018. As explained in a second Federal Register Notice published that same day, HUD
directed all program participants who had not yet completed an AFH that they would continue to be required to conduct an AI. 83 FR 2392723928.7
This well-established AI obligation and planning process continued to be in place until the PCNC regulation took effect on September 8, 2020.
5 Program participants subject to the requirements of the 2015 rulemaking included jurisdictions and insular areas required to submit consolidated plans for the Community Development Block Grant CDBG program see 24 CFR part 570, subparts D
and I; the Emergency Solutions Grants ESG
program see 24 CFR part 576; the HOME
Investment Partnerships HOME program see 24
CFR part 92; and the Housing Opportunities for Persons With AIDS HOPWA program see 24 CFR
part 574; as well as Public housing agencies PHAs receiving assistance under sections 8 or 9 of the United States Housing Act of 1937 42 U.S.C. 1437f or 42 U.S.C.1437g.
6 Along with a HUD-provided assessment tool, HUD-provided data also needed to be available to program participants to trigger the obligation to conduct an AFH under the 2015 AFFH rule.
7 The third Federal Register Notice withdrew an earlier Notice that had extended the deadline for submitting an AFH for certain program participants.
83 FR 23928.

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